Buggs v. Quintana
Filing
4
MEMORANDUM OPINION & ORDER: (1) DENYING Buggs' 1 petition for a writ of habeas corpus; (2) court will enter an appropriate judgment; (3) matter is STRICKEN from the docket. Signed by Judge Joseph M. Hood on 12/21/12.(KJR)cc: COR, pla (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CARL BUGGS, JR.,
)
)
) Civil Action No. 12-CV-337-JMH
)
)
)
)
MEMORANDUM OPINION
)
AND ORDER
)
Petitioner,
V.
FRANCISCO J. QUINTANA, Warden,
Respondent.
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Carl Buggs, Jr., is an inmate confined at the Federal Medical
Center in Lexington, Kentucky.
Proceeding without an attorney,
Buggs has filed a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2241, challenging his underlying conviction.
[R. 1]
Buggs has paid the $5.00 filing fee.
The
Court
petitions.
conducts
an
initial
review
of
habeas
corpus
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).
The Court must
deny the petition “if it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief.”
Rule 4 of the Rules Governing § 2254 Cases in the United States
District Courts (applicable to § 2241 petitions under Rule 1(b)).
The Court evaluates Buggs’s petition under a more lenient standard
because he is not represented by an attorney.
551 U.S. 89, 94 (2007).
Erickson v. Pardus,
At this stage, the Court accepts the
petitioner’s factual allegations as true, and his legal claims are
construed in his favor.
544, 555-56 (2007).
Bell Atlantic Corp. v. Twombly , 550 U.S.
Having reviewed the petition, the Court must
deny relief because, aside from its procedural defects, it has no
merit.
For these reasons, the Court will deny his petition and
dismiss this proceeding.
BACKGROUND
On May 20, 1999, Buggs and three co-defendants were indicted
by a grand jury in the United States District Court for the
Northern District of Indiana, Hammond Division, in a nine-count
indictment
for
the
robbery
of
multiple
retail
businesses,
violations of 18 U.S.C. § 1951 (interference with commerce by
threat or violence); aiding and abetting, in violation of 18 U.S.C.
§ 2; and for the use of firearms during the commission of the
robbery offenses, in violation of 18 U.S.C. §§ 922(k) and 924(c).
Buggs was indicted in Counts 1, 6, 7, 8, and 9 of the indictment.
Buggs proceeded to trial and was convicted on all of the counts in
which he was charged.
Buggs was sentenced on December 7, 1999.
He received a 78-
month sentence on each of counts 1, 6, and 8, to be served
concurrently;
a
60-month
sentence
on
count
7,
to
be
served
consecutively to the 78-month sentences imposed on counts 1, 6, and
8; and a 240-month sentence on count 9, to be served consecutively
to the sentences imposed on counts 1, 6, and 8 to the extent
necessary to produce a total sentence of 378 months.
2
The court
also
ordered
Buggs
to
make
restitution
to
the
business
establishments that had been robbed.
Buggs’s conviction and sentence were affirmed on appeal.
United States v. Buggs, 6 F. App’x 484 (7th Cir. 2001).
Buggs then
moved to vacate or set aside his sentence, pursuant to 28 U.S.C.
§ 2255.
The trial court denied that motion, (R. 238-39), and the
Seventh Circuit Court of Appeals affirmed that denial on appeal.
Buggs v. United States, 107 F. App’x 649 (7th Cir. 2004).
DISCUSSION
Buggs contends that since there was just one predicate offense
charged (conspiracy in Count 1), his convictions on the two,
separate violations of 18 U.S.C. 924(c) (the firearms charged in
Counts 7 and 9), violate his rights to due process under the Fifth
Amendment and the Constitution’s Double Jeopardy Clause, and that
he is “actually innocent” of the sentence imposed on these firearms
charges.
To support this argument, Buggs relies on United States
v. Taylor, 13 F.3d 986 (6th Cir. 1994).
Having reviewed his arguments and the applicable law, it is
plain that Buggs is not entitled to relief under § 2241, as he
fails to assert a legitimate claim of actual innocence or to show
that a retroactively applicable Supreme Court decision affords him
relief. 28 U.S.C. § 2255 provides the primary avenue of relief for
federal prisoners claiming the right to release as a result of an
unlawful sentence.
Terrell v. United States, 564 F.3d 442, 447
3
(6th Cir. 2009) (citing 28 U.S.C. § 2255(a)).
It is the mechanism
for collaterally challenging errors that occurred “at or prior to
sentencing.”
Eaves v. United States, No. 4:10-cv-00036, 2010 WL
3283018, at * 6 (E.D. Tenn. Aug. 17, 2010).
The “savings clause” set forth in § 2255(e) provides a narrow
avenue for relief under § 2241 if the remedy under § 2255(a) is
“inadequate or ineffective to test the legality of the detention.”
Terrell, 564 F.3d at 447 (quoting Witham v. United States, 355 F.3d
501, 505 (6th Cir. 2004)).
A federal prisoner may not challenge
his conviction and sentence under § 2241 “if it appears that the
applicant has failed to apply for relief, by [§ 2255] motion, to
the court which sentenced him, or that such court has denied
relief.”
28 U.S.C. § 2255(e).
He must prove that his § 2255
remedy is inadequate or ineffective to challenge the legality of
his detention.
Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999);
Martin v. Perez, 319 F.3d 799 (6th Cir. 2003).
As previously
noted, Buggs’s Section 2255 motion filed in the trial court was
denied.
A.
Intervening change in the law
The Sixth Circuit permits a prisoner to take advantage of
this
narrow
“safety
valve”
provision
only
when,
after
the
petitioner’s conviction has become final, the Supreme Court reinterprets the terms of the statute under which the petitioner was
convicted in such a way that petitioner’s actions did not violate
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the statute.
Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003)
(holding that a prisoner who can show that an intervening change in
the law establishes his actual innocence can invoke the savings
clause of § 2255 and proceed under § 2241).
Buggs has not provided
the Court with any post-conviction decision by the Supreme Court
establishing an intervening change in the law that would make his
actions legal.
B.
Actual innocence
A movant can also implicate the savings clause when he alleges
“actual innocence,”
Bannerman v. Snyder, 325 F.3d 722, 724 (6th
Cir. 2003); Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir.
2003),
which
insufficiency.”
requires
“factual
innocence,
not
mere
legal
Bousley v. United States, 523 U.S. 614, 623-24
(1998); Hilliard v. United States, 157 F.3d 444, 450 (6th Cir.
1998); Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th
Cir. 2001).
The movant must show that “a constitutional violation
has probably resulted in the conviction of one who is actually
innocent” of the crime.
Murray v. Carrier, 477 U.S. 478, 496
(1986).
However, Buggs’s claim of “actual innocence” is a conclusory
allegation unsupported by any authority from the United States
Supreme Court Supreme Court reinterpreting the terms of the statute
petitioner was convicted of having violated in such a way that
petitioner’s actions did not violate the statute. Buggs’s claim of
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“actual innocence” is a claim of “legal insufficiency,” and thus
does not constitute the kind of “actual innocence” claim which may
be considered under the statute.
Because Buggs has already tested
the “legal sufficiency” of his conviction and sentence on direct
appeal and in his Section 2255 motion, he can not relitigate these
same claims in his § 2241 habeas petition.
C.
Petition on the merits
Even if he could do so, Buggs’s claims would fail on the
merits. Buggs argues that since there was a single predicate claim
(the
conspiracy
charged
in
Count
1),
he
cannot
lawfully
be
convicted and sentenced for two separate firearms offenses (as
charged in Counts 7 and 9).
In support of that argument, he points
to United States v. Taylor, supra.
Taylor concerned six defendants where the predicate offense
charged in Count 1 was possession with intent to distribute
cocaine.
Count 2 charged defendant Nash with using and carrying a
firearm (a 12-gauge Stevens single shotgun) during and in relation
to a drug trafficking crime, in violation of 18 U.S.C. § 924(c),
and Count 3 charged Nash with using and carrying a second firearm
(a 12-gauge Weatherby shotgun) during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c).
Nash was
convicted of the underlying drug offense (Count 1) and the two
counts (Counts 2 and 3) of using or carrying a weapon in relation
to the drug offenses.
Nash received a prison sentence of 27 1/4
6
years: a 2 1/4-year sentence on Count 1, a consecutive 5-year
sentence on Count 2, and a consecutive 20-year sentence on Count 3.
18 U.S.C. § 924(c)(1) provides that when a person uses or
carries a firearm during and in relation to any crime of violence
or a drug trafficking crime, he or she must be sentenced to a fiveyear sentence, imposed in addition to and to run consecutively to
the
sentence
imposed
for
committing
the
underlying
crime
of
violence or drug trafficking crime. The statute also provides that
in the case of a second or subsequent conviction under 18 U.S.C.
§ 924(c)(1), the defendant shall receive a consecutive twenty-year
sentence.
On appeal, the Sixth Circuit in Taylor framed the issue before
it as follows: “The issue before us, . . . is whether or not §
924(c) allows multiple convictions and sentences in relation to a
single predicate drug-trafficking offense.”
992.
Taylor, 13 F.3d at
In resolving that issue, the Taylor court noted:
It is well settled in this circuit that a defendant
has committed only a single violation of § 924(c)(1) when
he uses multiple firearms in relation to a single drug
trafficking offense.
United States v. Sims, 975 F.2d
1225, 1233 (6th Cir. 1992) (“Since the defendantsappellants were charged with and convicted of only one
predicate offense, a judgment of conviction may be
entered against each of them for only one violation of
section 924(c), and each may only receive one sentence
for violating section 924(c).”)
Taylor, 13 F.3d at 992.
Based on this well-settled rule, the Taylor court (1) remanded
the case to the district court, directing that Nash’s conviction
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and sentence on Count 3 be vacated, and (2) affirmed Nash’s
convictions in all other respects.
As a result, Nash was relieved
of having to serve an additional twenty-year sentence.
The foregoing rule recognized in Taylor is the rule in the
majority of the circuits, including the Seventh Circuit, where
Buggs was convicted.
See United States v. White, 222 F.3d 363,
373-74 (7th Cir. 2000).
this case.
Nevertheless, it does not assist Buggs in
His reliance on this rule in Taylor is misplaced.
In Taylor, the predicate offense on which the two firearm
counts were based was a single act of possession with intent to
distribute cocaine.
In Buggs’s case, the predicate offense is a
conspiracy to unlawfully obstruct, delay, and affect commerce that
spanned a period of time of more than six months, beginning or
about August 28, 1997, and ending or about March 3, 1998.
During
this period of time, various retail businesses were robbed on
different dates. In Count 6, Buggs was charged with the robbery of
“Loco’s Barber Shop” on December 13, 1997, and in Count 8, Buggs
was charged with the robbery of “The Store” on February 26, 1998.
The robbery of each of these businesses constitutes a separate and
distinct
robberies
offense.
occurred
Buggs
during
appears
the
to
course
argue
of
that
a
since
single
these
predicate
conspiracy offense, he can only be convicted and sentenced for a
single Section 924(c) violation.
extreme,
would
mean
that
during
8
This argument, taken to its
the
course
of
the
entire
conspiracy, he could have robbed a different business, while using
or carrying a firearm (irrespective of whether it is the same
firearm or a different firearm), every day for a period of time of
more than six months and still only be convicted and sentenced for
a single violation of Section 924(c).
analogous
context,
the
Sixth
Such is not the law.
Circuit
has
held
that
In an
separate
criminal acts committed even hours apart are separate offenses for
purposes of Section 924(e)(1).
United States v. Brady, 988 F.2d
664, 665 (6th Cir. 1993) (en banc); see also United States v.
Phillips, 149 F.3d 1026, 1031 (9th Cir. 1998) (“The rule is that
offenses that are temporally distinct constitute separate predicate
offenses, even if committed within hours of each other, similar in
nature, and consolidated for trial or sentencing.”); United States
v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000); United States v.
Hobbs, 136 F.3d 384 (4th Cir. 1998); United States v. Pope, 132
F.3d 684 (11th Cir. 1998).
Accordingly, courts have held that
“even if the single conspiracy offense is taken as the predicate
drug offense, we have held that ‘consecutive sentences under
section
924(c)(1)
are
appropriate
whenever
there
have
been
multiple, separate acts of firearm use or carriage, even when all
of those acts relate to a single predicate offense.’”
States v. McMillion, 175 F. App’x 588, 590 (4th Cir. 2006).
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United
In addition, Buggs’s case is factually distinguishable from
Taylor because the predicate offenses are different: a single act
of
possession
with
intent
to
distribute
in
Taylor
versus
a
conspiracy to rob retail business enterprises that lasted for more
than six months.
Taylor is not the panacea Buggs envisions.
Buggs’s argument would only have merit if he had been convicted of
a single act of robbing one retail business establishment on one
day while using or carrying more than one firearm at that time.
For these reasons, Buggs’s habeas petition is procedurally
improper and substantively without merit.
Accordingly, IT IS ORDERED that:
1.
Carl Buggs, Jr.’s petition for a writ of habeas corpus
[R. 1] is DENIED.
2.
The Court will enter an appropriate judgment.
3.
This matter is STRICKEN from the active docket.
This the 21st day of December, 2012.
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